Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission (Appeal - Common commercial policy - Protection against subsidised imports from third countries - Chinese entities - Opinion) [2024] EUECJ C-269/23P

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission (Appeal - Common commercial policy - Protection against subsidised imports from third countries - Chinese entities - Opinion) [2024] EUECJ C-269/23P_O (16 May 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C26923P_O.html Cite as: EU:C:2024:411, [2024] EUECJ C-269/23P_O, ECLI:EU:C:2024:411

( Appeal - Subsidies - Regulation (EU) 2016/1037 - Agreement on Subsidies and Countervailing Measures of the World Trade Organization (WTO) - Countervailing a financial contribution by a third State in the territory of another third State - Validity )

1. Disciplining subsidies is a delicate exercise. Their grant is intimately tied to the sovereignty of States, since the latter are generally free to benefit their industries without having to justify their actions. (2)

2. However, certain trading partners of the European Union increasingly resort to the use of subsidies as a thinly veiled means of economic statecraft. (3) In particular, the actions of the People’s Republic of China (‘China’) have become the focus of an international effort to tackle ‘market and trade distorting subsidisation’, (4) in particular that country’s ‘Go Global’ policy, (5) which encourages Chinese enterprises to invest overseas. (6)

3. The present appeals touch on the potentially distorting effects of that policy on the internal market. At issue is the question of whether the European Commission could legitimately resort to the use of countervailing measures, as regulated by the Basic Anti-Subsidy Regulation (7) and the Agreement on Subsidies and Countervailing Measures (‘SCM Agreement’), (8) to countervail subsidies granted by one WTO member (China) in the territory of another WTO member (the Arab Republic of Egypt) (‘Egypt’). (9)

4. In its judgments in Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission (10) and Jushi Egypt for Fiberglass Industry v Commission (11)(together, ‘the judgments under appeal’), the General Court upheld the validity of the use of countervailing duties in that particular type of factual constellation. The appellants in those cases are now challenging that finding.

5. Since the underlying investigations constitute the first time that a WTO member countervailed the injurious effects of ‘transnational subsidies’, (12) that problematic is novel and contested, (13) and not just from the perspective of EU law. (14)

6. The background to the underlying actions is set out in paragraphs 2 to 26 of the judgments under appeal. For the purposes of the present analysis, what requires retelling is the following.

7. The China-Egypt TEDA Suez Economic and Trade Cooperation Zone (‘SETC-Zone’) is part of a wider free economic zone in the north of the Gulf of Suez and part of the territory of Egypt. (15)

8. Under Egyptian Law No 83/2002 on Economic Zones of a Special Nature, that zone is classified as a special economic zone by the Government of Egypt. (16)

9. Identified by China as one of the first 18 officially approved ‘overseas trade and cooperation zones’, (17) since 2013, Chinese undertakings ‘going abroad’, including to operate in the SETC-Zone, may benefit from fiscal and tax support policies, concessional loans, financial support through syndicated loans, export credits, project financing, equity investment and export credit insurance. (18)

10. In 2016, the Presidents of China and Egypt signed the Agreement between the Ministry of Commerce of the People’s Republic of China and the General Authority for the Suez Canal Economic Zone of the Arab Republic of Egypt on the Suez Economic and Trade Cooperation Zone. (19)

11. Under the terms of this cooperation agreement, the Governments of China and Egypt are to develop jointly the SETC-Zone, in line with their respective national strategies. (20) Under that arrangement, the Government of Egypt provides the land, the labour and certain tax breaks, while the Chinese companies operating in the zone run the production facility with their assets and managers. Additional funding is received directly from China. (21)

12. The applicants at first instance are Jushi Egypt for Fiberglass Industry SAE (‘Jushi Egypt’) and Hengshi Egypt Fiberglass Fabrics SAE (‘Hengshi Egypt’). They are companies incorporated under Egyptian law and established there by Jushi China and Hengshi China, their Chinese parent companies. Those companies are related and ultimately belong to the China National Building Material Group, a State-owned company. (22)

13. For its part, that group is ultimately owned by the State-owned Assets Supervision and Administration Commission (‘SASAC’) of the State Council of China. (23) Directly controlled by the State Council of China, the highest administrative organ of that country, the contested regulations identify ‘SASAC [as] the key vehicle through which the Chinese government controls in several ways State-owned enterprises as a means to implement its government policies and plans rather than to follow a market logic in its business operations’. (24)

14. The products at issue in these appeals are continuous filament glass fibre products (‘GFR’) and glass fibre fabrics (‘GFF’). GFR are the direct upstream input material of GFFs.

15. GFR are essentially sand transformed into bendable glass fibre filaments which can then be either used as such or woven and/or stitched into GFF. Combined with resins to create light-weight composite materials, they may be used to enhance toughness, lightness and durability of components. As a result, they are used inter alia in the automotive, marine, aerospace, wind energy, infrastructure, pipe and building and construction industries.

16. The European Union’s ambitious climate policy has substantially increased EU demand for GFR and GFF. (25)

17. Jushi Egypt and Hengshi Egypt both produce GFF in the SETC-Zone, and Jushi Egypt also produces GFR there. (26) Both companies export those products to the European Union from that zone. (27)

18. In the contested regulations, on the basis of the evidence available to it, (28) the Commission inter alia concluded that there was a link (29) between the actions taken by the Government of China and the Government of Egypt, such as regards preferential lending (30) and support for capital investment (31) in favour of Jushi Egypt and Hengshi Egypt, so that the financial contributions provided by the Government of China to those companies could be attributed to the Government of Egypt. (32)

19. In the contested regulations, the Commission adopted the countervailing duties on imports of GFF and GFR into the European Union. In relation to the applicants, that duty was set at 13.1%.

20. By applications lodged at the Registry of the General Court on 28 July 2020 and 27 August 2020, the appellants brought their actions for annulment against the contested regulations.

21. On 1 March 2023, the General Court handed down the judgments under appeal, dismissing the appellants’ actions, and ordering them to pay their own costs as well as those of the Commission.

22. By their appeals, lodged on 25 April 2023 and 27 April 2023 respectively, the appellants claim that the Court should annul the judgments under appeal, accept in part the pleas in law brought at first instance, and order the Commission and the interveners to pay the costs.

23. The Commission contends that the Court should dismiss the appeals in their entirety and order the appellants to pay the costs.

24. It is supported in that course of action by Tech-Fab Europe eV (in Case C‑269/23 P) and by the European Glass Fibre Producers Association (in Case C‑272/23 P).

25. This Opinion is structured as follows. Since the main legal question that these appeals seek to address concerns the validity of the methodology employed by the Commission to countervail China’s ‘transnational subsidies’ in Egypt, I will deal with that question first. I shall propose to find that the General Court did not err when it upheld the methodology at issue on the basis of the Basic Anti-Subsidy Regulation and the SCM Agreement (Section A). (33)

26. Only thereafter will I turn to the more technical joint grounds of appeal: determining the comparator for the purposes of countervailing the Egyptian import tariff rebates scheme (Section B) and the countervailability of the tax treatment of foreign exchange losses (Section C). Finally, I shall deal with the sole ground of appeal which differs between the two sets of appeals pending before the Court: the level of the countervailable subsidy for group entities (Section D).

A. The application of the anti-subsidy instrument to ‘transnational subsidies’

27. The second and third grounds of appeal in Case C‑269/23 P and the first and second grounds of appeal in Case C‑272/23 P turn, in essence, on the question of whether the Commission could legitimately resort to the use of the anti-subsidy instrument, as regulated by the Basic Anti-Subsidy Regulation, to countervail the direct and indirect financial support received by the appellants from the Government of China for their manufacture of the product at issue in Egypt. (34)

28. In the judgments under appeal, the General Court upheld that possibility. On the basis of a textual, contextual and teleological interpretation, that court concluded that ‘the basic anti-subsidy regulation does not rule out the possibility that, even if the financial contribution does not come directly from the government of the country of origin or export, that contribution may be attributed to it’. (35) It arrived at that finding on the basis of an interpretation of Article 3(1)(a) of the Basic Anti-Subsidy Regulation, which defines the concept of ‘subsidy’, read against recital 5 of that regulation. (36)

29. I agree with the General Court’s conclusion. In what follows, I shall provide some additional reasoning.

30. At its heart, the legal question underlying the present appeals concerns the scope of the concept of ‘subsidy’, which is defined in Article 3 of the Basic Anti-Subsidy Regulation.

31. In its English language version, that provision lays down that a subsidy must be understood to mean ‘a financial contribution by a government in the country of origin or export’, (37) by reason of which a benefit is conferred. (38)

32. The Commission’s line of argument links directly to the highlighted parts of the wording of that provision in the English version. Its argument essentially concerns the differences between the use of the non-determinative ‘a’ and the determinative ‘the’ in Article 3(1)(a) of the Basic Anti-Subsidy Regulation and the resulting openness, of that instrument, to countervailing Chinese subsidies granted to undertakings established in Egypt.

33. However, as the appellants correctly highlight, a linguistic examination of the different language versions of Article 3(1)(a) of the Basic Anti-Subsidy Regulation reveals differences.

34. Some language versions of that provision may indeed be read, similarly to the English language version, to leave somewhat open the source of the financial contribution that benefits the product at issue in the country of origin or export. (39) Other language versions, however, are phrased in such a way as to suggest that the concept of subsidy is limited to financial contributions granted by the government of the country of origin or export of the product at issue. (40)

35. For the purposes of ensuring a uniform application and interpretation of the Basic Anti-Subsidy Regulation, Article 3 thereof must therefore be interpreted by reference to the purpose and general scheme of the rules of which it forms part. (41)

36. The principles surrounding the scope and application of the anti-subsidy instrument are provided for in Article 1(1) of the Basic Anti-Subsidy Regulation. Pursuant to that provision, a countervailing duty may be imposed to offset ‘any subsidy granted, directly or indirectly, for the manufacture, production, export or transport of any product whose release for free circulation in the Union causes injury’. (42)

37. From that definition, it is clear that the Basic Anti-Subsidy Regulation seeks to apply in any scenario in which a countervailing duty may need to be imposed to offset the subsidisation of a foreign product through a wide array of transfers of value which have the consequence of injuring the EU industry of a like product.

38. Article 1(1) of the Basic Anti-Subsidy Regulation does not prescribe that the injurious subsidy must directly derive from the country from which the product at issue originates or is exported. On the contrary, the reference to such a subsidy being granted ‘indirectly’ implies that there need not necessarily be a territorial nexus to the country of origin or export, so long as that grant may be linked to the manufacture, production, export or transport of any product whose release to the internal market causes injury.

39. That reading is also supported by Article 2(a) of the Basic Anti-Subsidy Regulation, which, in the relevant part, lays down that a countervailable ‘subsidy may be granted by the government of the country of origin of the imported product, or by the government of an intermediate country from which the product is exported to the Union’. (43) In making use of the modal verb ‘may’, that provision therefore also leaves open the group of possible grantors of a countervailable subsidy, not limiting it to the country of origin or export of the product at issue.

40. Moreover, and contrary to what the appellants argue, that consideration is not undermined by the wording of Article 4(2) and (3) of the Basic Anti-Subsidy Regulation, which deals with the question of specificity of a countervailable subsidy and lays down that specificity is assessed by reference to ‘the jurisdiction of the granting authority’.

41. Indeed, that provision is silent as to the question of whether the granting authority must be in the country of export or origin of the product at issue.

42. Accordingly, as the General Court correctly established, (44) where, as in the underlying investigations, the Commission is able, on the basis of the evidence available to it, to attribute a financial contribution to the government of the country of origin or export of the product at issue, despite that contribution coming originally from the government or public body of a third country, Article 4(2) and (3) of the Basic Anti-Subsidy Regulation allows the Commission to treat that first government as the ‘granting authority’ of that particular financial contribution. (45)

43. Finally, as the Commission correctly notes, such a reading is also supported by recital 5 of the Basic Anti-Subsidy Regulation, which, it appears, coherently across language versions, (46) explains that a subsidy is present where it is demonstrated that there is ‘a financial contribution by a government or a public body within the territory of a country’. (47)

44. Read in that context, a product may be considered to be subsidised not only where a subsidy can be attributed to the country of origin or export of the product at issue, but also where another government or public entity may be identified, on the basis of the evidence available, to be the source of the injurious subsidisation.

45. That interpretation is also borne out by the objective of the Basic Anti-Subsidy Regulation, which, since its original form in 1968, (48) is principally aimed at assisting the EU industry to rebalance the conditions of competition on the internal market that are affected by prohibited subsidies granted abroad. (49)

46. In conclusion, the Basic Anti-Subsidy Regulation is not limited to subsidies granted by the government of a State in its ‘own’ territory.

47. The appellants, however, assert that the scope of the anti-subsidy discipline thus understood is not compatible with the European Union’s obligations under the GATT and the SCM Agreement. (50)

48. I agree that those international agreements must be had regard to since the European Union is a signatory party to the WTO agreements, which include the GATT and the SCM Agreement, and which therefore form part of the EU legal order and bind its institutions. (51)

49. While it is well established that those agreements generally do not have direct effect, (52) the European Union’s constitutional obligation to observe the commitments arising from its international commitments, (53) reflecting the general international law principle of compliance with treaty commitments (pacta sunt servanda), (54) requires it to interpret EU law, where necessary, in conformity with WTO law. (55)

50. As per its recital 3, the Basic Anti-Subsidy Regulation seeks to implement into EU law ‘to the best extent possible’ the commitments entered into at the level of the SCM Agreement.

51. The Court has already explained that the same wording, albeit in the context of the basic anti-dumping regulation, (56) must not, in itself, be understood as an intention on the part of the EU legislature to transpose all of the rules contained in the SCM Agreement into EU law. (57)

52. Accordingly, it is wrong to conclude, as the General Court did, (58) that the use of that wording is sufficient evidence to assume that the EU legislature intended to implement the particular obligations assumed under Article 1.1(a)(1) of the SCM Agreement.

53. That being said, the wording of Article 3(1)(a) of the Basic Anti-Subsidy Regulation does substantially reflect that of Article 1.1(a)(1) of the SCM Agreement. The former accordingly requires an interpretation in conformity with the latter. (59)

54. Article 1.1(a)(1) of that agreement lays down that ‘a subsidy shall be deemed to exist if … there is a financial contribution by a government or any public body within the territory of a Member’. (60)

55. Interpreting that provision in good faith and in accordance with the ordinary meaning given to its terms in their context, as required by Article 31(1) of the Vienna Convention on the Law of Treaties (United Nations Treaty Series, vol. 1155, p. 331), it transpires that the particular use of the indefinite article ‘a’ in the phrase ‘financial contribution by a government’ in the chapeau of Article 1.1(a)(1) of the SCM Agreement leaves open the geographical origin of the source of the financial contribution in question, so long as the subsidy in question originates from any WTO member.

56. I do not consider that reading to be affected by the qualifier ‘within the territory of a Member’ in Article 1.1(a)(1) of the SCM Agreement, since that phrase refers to the concept ‘government or any public body’, and not the term ‘financial contribution’.

57. That conclusion is also compatible with the SCM Agreement, which interprets and applies Article VI of the GATT 1994, and whose ‘main object and purpose … is to increase and improve GATT disciplines relating to the use of both subsidies and countervailing measures’. (61)

58. In that respect, I refer in particular to Article VI(3) of the GATT 1994, which defines a countervailing duty as a special duty applied to offset any ‘bounty or subsidy … on the manufacture, production or export of such product’, without specifying who provides such bounty or subsidy and without territorially limiting the entity providing it.

59. Accordingly, Article VI of the GATT 1994 principally (62) covers all subsidies regardless of their origin. (63)

60. Viewed also from that angle, not only would a different interpretation run counter to the ordinary meaning of the terms used in the SCM Agreement and Article VI of the GATT 1994, it would also frustrate the object and purpose of those provisions if the European Union were not able to offset financial contributions, such as those at issue in the present case, purely by reason of their territorial source.

61. Given that no other reading can be distilled from the negotiating history of Article 1.1(a)(1) of the SCM Agreement, (64) the use of which may act as a supplementary means of interpretation of that agreement, within the meaning of Article 32 of the Vienna Convention on the Law of Treaties, it appears clear to me that Article 1.1(a)(1) of the SCM Agreement does not territorially limit the geographical scope of the source of a financial contribution to the WTO member in whose territory the production of the product at issue occurs. (65)

62. Consequently, I consider that Article 1.1(1)(a) of the SCM Agreement does not preclude treating as a subsidy an arrangement whereby one WTO member provides a financial contribution to a product manufactured in the territory of another WTO member.

63. It follows that, for all of the above reasons, I consider that the General Court did not err in concluding that the scope of application of the Basic Anti-Subsidy Regulation, as expressed particularly in Article 1(1) and Article 3(1)(a) thereof, also extends to the situation whereby the Commission is able, on the basis of sufficient evidence, to attribute the financial support received from one government of a third country to the government of another third country.

64. I therefore propose to the Court that it reject the second and third grounds of appeal in Case C‑269/23 P and the first and second grounds of appeal in Case C‑272/23 P.

B. Determining the comparator for the purposes of countervailing the Egyptian import tariff rebates scheme for imported materials

65. In their fourth ground of appeal in Case C‑269/23 P and in their third ground of appeal in Case C‑272/23 P, the appellants, in essence, argue that the General Court erred when it upheld the Commission’s approach of comparing their situation with that of an undertaking similarly located in the SETC-Zone but which sells to the Egyptian market for the purposes of countervailing the appellants’ benefit arising from the import tariff rebates scheme. (66) Furthermore, the appellants maintain that their situation should have been compared with a theoretical scenario whereby they would be established outside the SETC-Zone but still exported the products at issue to the European Union. In that kind of situation, the appellants argue, the Government of Egypt would not have foregone revenue by means of the import tariff rebates scheme since it would never had sought to collect import tariffs for imported input materials for the production of the products at issue.

66. At the heart of the appellants’ argument is, therefore the question of what the comparable situation in the present case should be. (67)

67. However, the only legal provision that the appellants cite in the text of their appeals in support of their argument is Article 5 of the Basic Anti-Subsidy Regulation. That provision, which relates to the quantification of the amount of the countervailable subsidy, does not govern the comparator for the purposes of establishing whether the Government of Egypt chose to forego certain revenue that is otherwise due, within the meaning of Article 3(1)(a)(ii) of the Basic Anti-Subsidy Regulation (since the quantification of that foregone revenue logically comes after the point of establishing its existence). (68)

68. Nor do the appellants further explain how the General Court erred in its interpretation or application of the applicable legal framework.

69. And yet, that explanation is vital to the admissibility of the appellants’ line of argument, since Article 3(1)(a)(ii) of the Basic Anti-Subsidy Regulation, even if that had been the provision that the appellants had sought to rely on (quod non), does not provide for a method of setting the appropriate comparator in determining whether government revenue, that is otherwise due, is foregone or not collected.

70. The Commission accordingly holds a certain discretion to choose among the different parameters and scenarios that underlie its task of establishing whether the Government of Egypt chose to forego revenue otherwise due. (69)

71. In the absence of any other arguments to the contrary, the General Court cannot be faulted for upholding the Commission’s choice of the appropriate comparator in the anti-subsidy investigations underlying the present appeals. (70)

72. I therefore propose that the Court find the fourth ground of appeal in Case C‑269/23 P and the third ground of appeal in Case C‑272/23 P inadmissible.

C. Countervailing the tax treatment of foreign exchange losses resulting from the devaluation of the Egyptian pound in 2016

73. In the fifth ground of appeal in Case C‑269/23 P and the fourth ground of appeal in Case C‑272/23 P, the appellants, in essence, argue that the General Court failed to assess whether the Commission had identified the correct subsidy scheme in the contested regulations. According to them, the Commission wrongly considered that it was the tax treatment of foreign exchange losses, introduced in the wake of the 2016 devaluation of the Egyptian Pound, (71) that constituted the subsidy scheme which conferred a benefit that is de facto specific, within the meaning of Article 3(2) and Article 4(2)(c) of the Basic Anti-Subsidy Regulation. According to the appellants, that treatment was open to all Egyptian companies, such that, in theory, every Egyptian company was able to deduct losses caused by the effects of the 2016 devaluation of the Egyptian Pound from their taxable income. For that reason, the Commission wrongly attributed the benefit resulting from the 2016 devaluation to the tax treatment of foreign exchange losses.

74. While the appeals are not beacons of clarity, contrary to what the Commission argues, it is my understanding that those grounds of appeal do not seek to re-litigate the facts. Instead, a generous reading of the arguments appears to suggest that the appellants seek to request that the Court of Justice review the General Court’s conclusion that a joint consideration of the tax treatment and the special accounting rules was capable of conferring a de facto specific benefit.

75. That type of argument falls within the scope of the Court of Justice’s jurisdiction. (72)

76. In that regard, I observe that Article 4(2)(c) of the Basic Anti-Subsidy Regulation is designed precisely to capture those types of scenarios where, on face value, a measure may appear to be non-specific, but, in practice, and on the basis of objective criteria or conditions, that measure has the effect of establishing a specific arrangement designed to grant a subsidy to certain enterprises.

77. For the purposes of that assessment, in determining whether a subsidy is de facto specific, the Court must focus not on the national rules as such, but on the degree of impact that those rules have for certain enterprises, (73) viewed in the context within which they were introduced. (74)

79. First, it considered that the appellants’ argumentation was based on an incorrect premiss, namely that ‘the Commission did not consider that the tax treatment in itself constituted a subsidy capable of being the subject of a countervailing measure’. (75)

80. Second, that court explained that the Commission, treating the tax treatment and the special accounting rules together, had concluded that, while capable of benefiting all Egyptian companies, in practice, those rules were meant to allow offsetting of the negative effects of the 2016 devaluation of the Egyptian Pound, with the effect that a particular category of companies, (76) such as the appellants, (77) were accorded a substantial benefit. (78)

81. Finally, the General Court explained that the appellants had produced no evidence to contest those factual determinations. (79)

82. I therefore propose to the Court that it also reject the fifth ground of appeal in Case C‑269/23 P and the fourth ground of appeal in Case C‑272/23 P as unfounded.

83. In their first ground of appeal in Case C‑269/23 P, the appellants, in essence, take issue with the General Court’s decision to uphold the Commission’s methodology for calculating the amount of the countervailable subsidy received by the appellants on the basis of their combined turnover. (80)

84. That ground of appeal accordingly requires an interpretation of Articles 5 and 6 of the Basic Anti-Subsidy Regulation.

85. Article 5 of that regulation, titled ‘Calculation of the amount of the countervailable subsidy’, provides that it is the benefit conferred ‘on the recipient’ which is found to exist during the investigation period for subsidisation that must act as the basis for calculating the amount of the countervailable subsidy. Similarly, Article 6 of that regulation, titled ‘Calculation of benefit to the recipient’, lays down certain guidelines for the calculation of the amount of benefit, and thus of subsidy, ‘to the recipient’.

86. According to the appellants, the use of the singular ‘recipient’ in those provisions would mean, as the General Court concluded in its judgment in Jindal Saw and Jindal Saw Italia v Commission, (81) that ‘the benefit must be established and calculated for each recipient according to the recipient’s situation’. (82) Only where a subsidy would be granted jointly to both entities together could the amount of the countervailable subsidy also be established for those entities collectively. The result would be that the Commission should have separately calculated the benefit as a percentage for Jushi Egypt and Hengshi Egypt, applied that benefit as a percentage to their respective turnover of the product at issue, and computed a single overall weighted average subsidy margin for the appellants collectively. (83)

87. At the same time, the appellants do not dispute - in fact, they expressly agree in their written submissions - that, in spite of the use of the singular ‘recipient’ in Articles 5 and 6 of the Basic Anti-Subsidy Regulation, the concept of ‘recipient’ may be interpreted so as to also include a group of companies. (84)

88. I do not consider it logical to follow the appellants’ proposed distinction.

89. First, their line of argument is not supported by any references or case-law. (85) Nor do Articles 5 and 6 of that regulation contain any qualifiers that would allow the concept of ‘recipient’ to be given a restrictive reading.

90. Second, a broad interpretation of that concept is not only in line with the interpretation that the Court has given to similar concepts of State aid and competition law, that is to say, the concepts of ‘economic unit’ or ‘undertaking’, (86) but it is also the reading which the WTO Appellate Body has attributed to the concept of ‘recipient’, as used in the SCM Agreement. (87)

91. Third, the approach to treating entities forming part of an indivisible whole, from an industrial and economic point of view, as related aligns itself with the economic reality on the ground of ensuring that intra-group capital transfers may not escape the anti-subsidy instrument. (88)

92. The resulting broad reading of the concept of ‘recipient’ therefore serves the objective of the Basic Anti-Subsidy Regulation, to ‘offset any subsidy granted, directly or indirectly, for the manufacture, production, export or transport of any product whose release for free circulation in the Union causes injury’. (89)

93. Accordingly, I do not consider that the Court should find the General Court to have erred in adopting the above line of interpretation and upholding the Commission’s calculation of the appellants’ countervailable subsidy.

94. It follows that I propose that the Court should reject the first ground of appeal in Case C‑269/23 P.

95. Under Article 137 and Article 184(2) of its Rules of Procedure, where the Court itself gives final judgment in the case, it is to make a decision as to costs.

96. Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

97. As, in my view, the appellants are unsuccessful in the present appeals for the reasons I have given above, I consider that they should be ordered to bear their own costs and to pay those incurred by the Commission, both at first instance and at the appeal stage.

98. By contrast, in accordance with Article 140(3) of the Rules of Procedure, which is also applicable to appeal proceedings by virtue of Article 184(1) of the Rules of Procedure, Tech-Fab Europe eV and the European Glass Fibre Producers Association should bear their own costs.

– uphold the judgments of 1 March 2023, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission (T‑480/20, EU:T:2023:90), and of 1 March 2023, Jushi Egypt for Fiberglass Industry v Commission (T‑540/20, EU:T:2023:91);

– order Hengshi Egypt Fiberglass Fabrics SAE and Jushi Egypt for Fiberglass Industry SAE each to bear their own costs and to pay the costs incurred by the European Commission both at first instance and at the appeal stage; and

– order Tech-Fab Europe eV and the European Glass Fibre Producers Association to bear their own costs.

2 See, to that effect, Luengo Hernández de Madrid, G.E., Regulation of Subsidies and State Aids in WTO and EC Law, Kluwer Law International, Alphen aan den Rijn, 2007, p. 4.

3 See, generally, Bräutigam, D. and Xiaoyang, T., ‘Economic statecraft in China’s new overseas special economic zones: Soft power, business, or resource security?’, IFPRI Discussion Paper 01168, March 2012, p. 9.

4 See the Joint Statement of the Trilateral Meeting of the Trade Ministers of Japan, the United States and the European Union, 14 January 2020, available at: https://ustr.gov/about-us/policy-offices/press-office/press-releases/2020/january/joint-statement-trilateral-meeting-trade-ministers-japan-united-states-and-european-union

5 See, in detail, Commission Staff Working Document on significant distortions in the economy of the People’s Republic of China for the purposes of trade defence investigations (SWD(2024) 91 final, p. 618 et seq.) (explaining that ‘the “go out” policy emphasised that Chinese companies can make full use of both domestic and international resources to make up for any deficiencies in the domestic market’).

6 See, generally, Organisation for Economic Co-operation and Development, ‘The Belt and Road Initiative in the global trade, investment and finance landscape’, OECD Business and Finance Outlook, 2018, pp. 3 and 33.

7 Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55) (‘the Basic Anti-Subsidy Regulation’).

8 Agreement on Subsidies and Countervailing Measures of the World Trade Organization (WTO) (‘the SCM Agreement’).

9 See Commission Implementing Regulation (EU) 2020/776 of 12 June 2020 imposing definitive countervailing duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt and amending Commission Implementing Regulation (EU) 2020/492 imposing definitive anti-dumping duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt (OJ 2020 L 189, p. 1) (‘the GFF Regulation’) and Commission Implementing Regulation (EU) 2020/870 of 24 June 2020 imposing a definitive countervailing duty and definitively collecting the provisional countervailing duty imposed on imports of continuous filament glass fibre products originating in Egypt, and levying the definitive countervailing duty on the registered imports of continuous filament glass fibre products originating in Egypt (OJ 2020 L 201, p. 10) (‘the GFR Regulation’) (together, ‘the contested regulations’).

10 Judgment of 1 March 2023, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission (T‑480/20, EU:T:2023:90; ‘the judgment in Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission’).

11 Judgment of 1 March 2023, Jushi Egypt for Fiberglass Industry v Commission (T‑540/20, EU:T:2023:91; ‘the judgment in Jushi Egypt for Fiberglass Industry v Commission’).

12 In the meantime, on 25 March 2024, the United States of America amended its anti-subsidy regulations so as to specifically allow for the imposition of countervailing duties on transnational subsidies; see United States Department of Commerce, ‘Regulations improving and strengthening the enforcement of trade remedies through the administration of the antidumping and countervailing duty laws’, Federal Register, Vol. 89, p. 20766, 25 March 2024, in particular p. 20826 et seq.

13 See, in that regard, Benitah, M., The WTO Law of Subsidies - A Comprehensive Approach, Kluwer Law International, Leiden, 2019, p. 605 (explaining that, ‘despite appearances, present case-law has never been confronted with’ a scenario where a subsidy is granted to a benefit recipient manufacturing the product at issue outside the country of the granting government).

14 At the time of writing, however, the European Union had concluded one other anti-subsidy investigation that had made use of the anti-subsidy instrument to tackle a similar type of ‘transnational subsidies’ scenario involving the Republic of Indonesia and China; see Commission Implementing Regulation (EU) 2022/433 of 15 March 2022 imposing definitive countervailing duties on imports of stainless steel cold-rolled flat products originating in India and Indonesia and amending Implementing Regulation (EU) 2021/2012 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of stainless steel cold-rolled flat products originating in India and Indonesia (OJ 2022 L 88, p. 24). That regulation was challenged before the General Court in Case T‑348/22, PT Indonesia Ruipu Nickel and Chrome Alloy v Commission, which remains pending. The same regulation also gave rise to proceedings before the WTO Dispute Settlement Body, which also remain pending and which have been registered as European Union - Countervailing and Anti-Dumping Duties on Stainless Steel Cold-Rolled Flat Products from Indonesia (DS616).

15 Judgments under appeal, paragraph 3 in both. On the geographical expansion of that zone, see also their paragraphs 4, 7 and 9 respectively.

16 Judgments under appeal, paragraph 4 in both. See also the GFF Regulation, recital 650, and the GFR Regulation, recital 38.

19 Judgments under appeal, paragraph 9 in both. See also the GFF Regulation, recital 656, and the GFR Regulation, recital 44.

20 Driving the development of the SETC-Zone is a company called Egypt TEDA Investment Co., which is established as a joint venture between a company called China-Africa TEDA Investment Co. Ltd. – which, itself, is a company set up by the China-Africa Development Fund and the State-owned company Tianjin TEDA Investment Holding Co. Ltd. – on the one hand, and Egypt China Joint Venture Company, on the other hand. Both Egypt TEDA Investment Co. and the China-Africa Development Fund are themselves respectively established as joint ventures between Egyptian and Chinese State-owned companies. See the GFF Regulation, recitals 649 and 652, and the GFR Regulation, recitals 37 and 40.

21 Judgments under appeal, paragraph 10 in both. See also the GFF Regulation, recital 658, and the GFR Regulation, recital 46.

22 Judgment in Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission, paragraph 2. See also the GFF Regulation, recital 93, and the GFR Regulation, recital 187.

24 The GFF Regulation, recital 774, and the GFR Regulation, recital 212. Since 2017, the SASAC’s role is inter alia to ‘promote the optimal allocation of State-owned capital by centering around the missions of serving national strategic objectives’; see Commission Staff Working Document on Significant Distortions in the Economy of the People’s Republic of China for the Purposes of Trade Defence Investigations (SWD(2024) 91 final), p. 111.

25 See, for example, Opinion of the European Economic and Social Committee, ‘Glass in Europe at a crossroads: delivering a greener, energy-efficient industry, while enhancing competitiveness and maintaining quality jobs’ (2022/C 105/04), paragraphs 3.1.1.1, 3.1.2.1 and 3.4 (describing glass fibre derivates as ‘key to attaining optimal insulation in buildings’ and highlighting their use in wind turbines, displays, smartphones, tablets and other (touch) screens).

28 Pursuant to Article 28(1) of the Basic Anti-Subsidy Regulation, in cases in which an interested party refuses access to, or otherwise does not provide necessary information within certain time limits, the Commission may draw affirmative or negative findings on the basis of the facts available to it. In recitals 661 to 664 of the GFF Regulation and in recitals 49 to 57 of the GFR Regulation, the Commission explains that it had to resort to that provision inter alia as regards the legal and institutional framework and the administration of the SETC-Zone as well as the precise collaboration between the Governments of China and Egypt in relation to that zone.

29 See, in that regard, the GFF Regulation, recitals 676, 678 and 683, and the GFR Regulation, recitals 61, 66 and 71: ‘the Egyptian government was expecting and welcoming Chinese financing for the close cooperation within the SETC-Zone, in order to boost the development of one of its poorest regions. The Chinese government was hoping that Chinese companies could operate outside Chinese territories and expand their exports under the “One Belt, One Road” initiative (possibly to avoid being caught by trade defence measures).’

30 See the GFF Regulation, recitals 726 to 757, and the GFR Regulation, recitals 143 to 147.

31 See the GFF Regulation, recitals 758 to 804, and the GFR Regulation, recitals 230 to 241. See also General Final Disclosure Document (AS657), 29 April 2020 (Annex A.24 to Case T‑540/20), paragraphs 158 to 206.

32 See the GFF Regulation, recitals 670 to 699, and the GFR Regulation, recitals 58 to 87. See also, in that regard, the GFF Regulation, recital 659, and, to that effect, the GFR Regulation, recital 47: Jushi Egypt and Hengshi Egypt are ‘financed with funds coming from China, [they use] input materials and equipment imported from China, [they are] directed by Chinese managers and [they use] Chinese know-how’.

33 Since the General Court did not address the question of attributability of China’s financial contributions to Egypt, including the Commission’s use of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, and since that issue has not been appealed before the Court (see judgments under appeal, paragraph 103 (T‑480/20) and paragraph 70 (T‑540/20)), I shall take no position on that part of the overall discussion. See also the GFF Regulation, recitals 686, 707, 708, 718 and 719, and the GFR Regulation, recitals 74, 95, 102 and 103.

34 For completeness, I should observe that, in their appeals, the appellants note that they take issue with the judgments under appeal, paragraphs 81 to 103 (T‑480/20) and paragraphs 48 to 70 (T‑540/20). However, many of those paragraphs concern factual findings made by the General Court on the basis of the contested regulations. Given that the Court’s jurisdiction is, in principle, under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, limited to points of law, in so far as the second ground of appeal in Case C‑269/23 P and the first ground of appeal in Case C‑272/23 P should also be understood as challenging the General Court’s factual determinations, without, however, explaining how that court distorted the clear sense of the evidence before it, they are inadmissible; see, ex multis, judgment of 8 June 2023, Severstal and NLMK v Commission (C‑747/21 P and C‑748/21 P, EU:C:2023:459, paragraphs 44 to 46 and the case-law cited).

35 Judgments under appeal, paragraph 84 (T‑480/20) and paragraph 51 (T‑540/20).

36 Judgments under appeal, paragraphs 79 to 83 (T‑480/20) and paragraphs 46 to 50 (T‑540/20).

37 Article 3(1)(a) and (b) of the Basic Anti-Subsidy Regulation (emphasis added). Following that conceptual definition is a list of acts by a government or public body that constitute a subsidy, such as a direct transfer of funds in the form of, for example, grants or loans, or more indirect means of price support, such as through government revenue that is otherwise foregone; see Article 3(1)(a)(i) to (iv) of that regulation. As the General Court also explained in judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑300/16, EU:T:2019:235, paragraph 107), that list is rounded off by ‘the second indent of Article 3(1)(a)(iv) of the basic [anti-subsidy] regulation [which] is, in essence, an anti-circumvention provision, which aims to ensure that governments of third countries are not able to escape the rules on subsidies by adopting measures which, in appearance, do not strictly fall within the scope of Article 3(1)(a)(i) to (iii) of the regulation, but have, in practice, equivalent effects’. Along the same lines, see the WTO Appellate Body report titled United States - Final Countervailing Duty Determination with respect to certain Softwood Lumber from Canada (WT/DS257/AB/R), paragraph 52.

39 See, for example, the German (‘eine Regierung im Ursprungs- oder Ausfuhrland’), Spanish (‘los poderes públicos en el territorio del país de origen o de exportación’), Danish (‘staten i oprindelses- eller eksportlandet’) and Irish (‘go bhfuil ranníocaíocht airgeadais ó rialtas sa tír thionscnaimh nó sa tír is onnmhaireoir’) language versions.

40 See, for example, the French (‘des pouvoirs publics du pays d’origine ou d’exportation’), Italian (‘una pubblica amministrazione del paese d’origine o di esportazione’), Croatian (‘postoji financijski doprinos vlade zemlje podrijetla ili izvoza’) and Slovenian (‘gre za finančni prispevek vlade v državi porekla ali izvoza’) language versions.

41 See, ex multis, judgments of 27 October 1977, Bouchereau (30/77, EU:C:1977:172, paragraph 14), and of 12 September 2019, Commission v Kolachi Raj Industrial (C‑709/17 P, EU:C:2019:717, paragraph 88 and the case-law cited).

44 See the judgments under appeal, paragraphs 106 to 108 (T‑480/20) and paragraphs 73 to 75 (T‑540/20).

45 I might add that the converse would make the applicability of the anti-subsidy instrument dependent on the origin of the financial flows at issue, which, even where capital movements could be tracked with reasonable accuracy, would easily enable the scope of application of the Basic Anti-Subsidy Regulation to be circumvented.

46 See, in that regard, for example, the French (‘une contribution financière par les pouvoirs publics ou tout organisme public, sur le territoire d’un pays’), German (‘eine Regierung oder eine öffentliche Körperschaft im Gebiet eines Landes eine finanzielle Beihilfe leistet’), Spanish (‘una contribución financiera por los poderes públicos o un organismo público en el territorio de un país’), Italian (‘un contributo finanziario da parte di una pubblica amministrazione o di un ente pubblico nel territorio di un paese’), Irish (‘ranníocaíocht airgeadais ó rialtas nó ó chomhlacht poiblí éigin laistigh de chríoch tíre’), Croatian (‘financijski doprinos vlade ili javnog tijela na državnom području zemlje’) and Danish (‘en statslig eller en offentlig myndighed har ydet et finansielt bidrag inden for et lands område’) language versions.

47 Emphasis added. In full, that recital reads as follows: ‘In determining the existence of a subsidy, it is necessary to demonstrate that there has been a financial contribution by a government or a public body within the territory of a country, or that there has been some form of income or price support within the meaning of Article XVI of the [General Agreement on Tariffs and Trade (‘the GATT’)] 1994, and that a benefit has thereby been conferred on the recipient enterprise.’

48 See Regulation (EEC) No 459/68 of the Council of 5 April 1968 on protection against dumping or the granting of bounties or subsidies by countries which are not members of the European Economic Community (OJ 1968 L 93, p. 1).

49 See, to that effect, judgment of 14 July 1988, Fediol v Commission (187/85, EU:C:1988:399, paragraph 14): a subsidy falls within the scope of the Basic Anti-Subsidy Regulation ‘if the economic advantage granted has damaging effects on normal competition because it is granted in favour of an undertaking or sectorally, of a group of undertakings’. See also, by analogy, judgments of 3 October 2000, Industrie des poudres sphériques v Council (C‑458/98 P, EU:C:2000:531, paragraph 91), and of 8 June 2023, Severstal and NLMK v Commission (C‑747/21 P and C‑748/21 P, EU:C:2023:459, paragraph 73), characterising trade remedies as ‘protective measures against unfair competition … to redress an imbalance in the domestic market’.

50 Both of those agreements were approved by the European Union as part of the Agreement establishing the WTO; see Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1).

51 See, ex multis, judgments of 30 April 1974, Haegeman (181/73, EU:C:1974:41, paragraphs 5 and 6), and of 6 October 2020, Commission v Hungary (Higher education) (C‑66/18, EU:C:2020:792, paragraph 69 and the case-law cited).

52 See, in particular, judgments of 5 October 1994, Germany v Council (C‑280/93, EU:C:1994:367, paragraphs 106 to 109), and of 23 November 1999, Portugal v Council (C‑149/96, EU:C:1999:574, paragraph 47).

54 See also, to that effect, my Opinion in Changmao Biochemical Engineering v Commission (C‑123/21 P, EU:C:2022:890, point 34).

55 See, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube (C‑891/19 P, EU:C:2022:38, paragraphs 31 and 32).

56 That is to say, Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21).

57 See judgment of 16 July 2015, Commission v Rusal Armenal (C‑21/14 P, EU:C:2015:494, paragraph 52).

58 See the judgments under appeal, paragraph 99 (T‑480/20) and paragraph 66 (T‑540/20).

59 See, to that effect, judgments of 12 May 2022, Commission v Hansol Paper (C‑260/20 P, EU:C:2022:370, paragraph 82), and of 27 February 2024, EUIPO v The KaiKai Company Jaeger Wichmann (C‑382/21 P, EU:C:2024:172, paragraph 74). For a concrete application of where that type of interpretation was possible, see judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube (C‑891/19 P, EU:C:2022:38, paragraphs 30 and 34).

61 See WTO Appellate Body report titled United States - Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany (WT/DS213/AB/R), paragraph 73. See also, to that effect, WTO Appellate Body report titled United States - Final Countervailing Duty Determination with respect to certain Softwood Lumber from Canada (WT/DS257/AB/R), paragraph 95.

62 I should be clear to highlight that the mere fact that a measure constitutes a ‘subsidy’ within the scope of Article VI of the GATT 1994 does not necessarily mean that any type of regulatory intervention in the market is necessarily covered by the scope of the SCM Agreement; see, in that regard, the WTO Appellate Body report titled United States - Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea (WT/DS296/AB/R), paragraph 115.

63 See also, in that respect, WTO Analytical Index, ‘Article VI - Anti-Dumping and Countervailing Duties’, p. 239, which, in relation to the concept of ‘bounty or subsidy’, refers to the Second Report of the Group of Experts on ‘Anti-Dumping and Countervailing Duties’ from 29 January 1960 (L/1141), where it is explained that ‘three experts considered that the word should be interpreted in a wider sense and felt that it covered all subsidies, whatever their character and whatever their origin, including also subsidies granted by private bodies’.

64 Indeed, as the Commission explains, while the negotiating text of (then) Article 3.1(a) was expanded to also include, within the definition of ‘government’, any public body within the territory of a WTO member, there is no evidence that that change of text, or any other amendment, was meant to limit the territorial scope of financial contributions which may be attributed to a WTO member. See, in that regard, Negotiating Group on Subsidies and Countervailing Measures, Status of Work in the Negotiating Group, Report by the Chairman to the Group of Negotiation on Goods, Document MTN.GNG/NG10/W/38 (18 July 1990), p. 2, and Document MTN.GNG/NG10/W/38/Rev.1 (4 September 1990), p. 2.

65 In support of that conclusion, see also Crochet, V. and Hegde, V., ‘China’s “Going Global” policy: Transnational protection subsidies under the WTO SCM Agreement’, 23 Journal of International Economic Law, 2020, p. 847, and Reinhold, P., ‘Strategische Autonomie und Handelsschutz - Länderübergreifende Subventionen vor den EU-Gerichten’, Jean Monnet Working Paper, No 1/24, p. 7; both explaining that Article 1.1(a)(1) of the SCM Agreement does not indicate where the recipient of the financial contribution conferred by a ‘government or any public body’ must be located.

66 The appeals challenge paragraphs 167 to 169 (T‑480/20) and paragraphs 134 to 136 (T‑540/20) of the judgments under appeal.

67 In the title to the fourth ground of appeal in Case C‑269/23 P and to the third ground of appeal in Case C‑272/23 P, the appellants also allege a breach of Article 3(1)(a)(ii) and (2) of the Basic Anti-Subsidy Regulation. However, since those parties do not elaborate on the alleged infringement of those provisions in the text of their application, I consider that the appeals must be dismissed as inadmissible to that extent for want of satisfaction of Article 169(2) of the Rules of Procedure of the Court of Justice. See, in that respect, judgment of 28 September 2023, Changmao Biochemical Engineering v Commission (C‑123/21 P, EU:C:2023:708, paragraph 87).

68 As the General Court explained, the WTO Appellate Body considers that the requirement to establish an appropriate comparator arises from Article 1.1(a)(1)(ii) of the SCM Agreement (see judgments under appeal, paragraph 164 (T‑480/20) and paragraph 131 (T‑540/20)). In particular, in relation to the wording ‘otherwise … foregone’, as it appears in that provision, the WTO Appellate Body has observed that the foregoing of revenue otherwise due implies that less revenue has been raised by the government than would have been raised in a different situation. The thusly given-up entitlement to revenue must be established by reference to ‘some defined, normative benchmark against which a comparison can be made between the revenue actually raised and the revenue that would have been raised “otherwise”’. See WTO Appellate Body report titled United States - Measures Affecting Trade in Large Civil Aircraft (Second Complaint) (WT/DS353/AB/R), paragraph 806. See also WTO Appellate Body report titled United States - Tax Treatment for ‘Foreign Sales Corporations’ (WT/DS108/AB/R), paragraph 90.

69 See, to that effect, judgment of 7 May 1987, NTN Toyo Bearing and Others v Council (240/84, EU:C:1987:202, paragraph 19), explaining that where EU legislation does not mandate a particular methodology, the resulting choice between the different methods of achieving the aim prescribed by EU law requires an appraisal of complex economic situations in relation to which the Court merely conducts a manifest error review.

70 See judgments under appeal, paragraph 168 (T‑480/20) and paragraph 135 (T‑540/20).

71 As the Commission explains in the contested regulations: ‘in 2016, the Egyptian government decided to change the fixed exchange rate of the Egyptian pound (“EGP”) into a floating exchange rate, based on a recommendation from the International Monetary Fund. As a result, the Egyptian pound lost around half of its value against other major currencies such as the USD and the EUR within a month. In order to address this sudden currency fluctuation, the [Government of Egypt] issued a special accounting standard, as well as a special tax rule for treating foreign exchange differences. As a result, companies were allowed to deduct foreign exchange differences due to the devaluation of the EGP from their taxable income more extensively.’ See the GFF Regulation, recital 860, and the GFR Regulation, recital 287.

72 See, in that respect, judgment of 1 June 1994, Commission v Brazzelli Lualdi and Others (C‑136/92 P, EU:C:1994:211, paragraph 49), explaining that while the General Court has exclusive jurisdiction to assess the facts, ‘when the Court of First Instance has found or assessed facts, the Court of Justice has jurisdiction to exercise the review required of it by Article 168a of the EEC Treaty provided that the Court of First Instance has defined their legal nature and determined the legal consequences’.

73 See, to that effect, the WTO Appellate Body report titled United States - Measures Affecting Trade in Large Civil Aircraft (Second Complaint) - Recourse to Article 21.5 of the DSU by the European Union (WT/DS353/AB/RW), paragraph 5.1813. See also, to that effect, Rubini, L., The Definition of Subsidy and State Aid: WTO and EC Law in Comparative Perspective, Oxford University Press, Oxford, 2009, p. 373 et seq.

74 See, to that effect and by analogy, in the field of State aid, judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 106), which explains that ‘the fact that offshore companies are not taxed is not a random consequence of the regime at issue, but the inevitable consequence of the fact that the bases of assessment are specifically designed so that offshore companies, which by their nature have no employees and do not occupy business premises, have no tax base under the bases of assessment adopted in the proposed tax reform’.

75 Judgments under appeal, paragraphs 176 and 177 (T‑480/20) and paragraphs 143 and 144 (T‑540/20).

76 See, in that regard, the GFR Regulation, recital 861, and the GFF Regulation, recital 288, which explain that, by reason of the special accounting standard, ‘companies operating their business in a foreign currency appear to be loss making for tax purposes even though their financial situation can show healthy profits. On the contrary, Egyptian companies operating their business in EGP have suffered actual losses that had a real impact on their business, which was addressed by the special tax rule issued by the [Government of Egypt].’

77 See, in that regard, the GFR Regulation, recital 862, and the GFF Regulation, recital 289, which explain that the appellants ‘are almost exclusively export-oriented, import almost all of their equipment, and their loans as well as a major part of their material purchases are denominated in foreign currencies. Indeed, as a result, the losses registered by [the appellants] because of the devaluation of the EGP, in particular because of the significant foreign currency loans, are not actual and are only used for tax purposes to decrease the taxable income.’

78 Judgments under appeal, paragraph 176 (T‑480/20) and paragraph 143 (T‑540/20).

79 Judgments under appeal, paragraph 177 (T‑480/20) and paragraph 144 (T‑540/20).

80 The appellants refer to paragraphs 32, 37, 42, 43, 46 to 48, 51 to 55 and 58 of the judgment in Jushi Egypt for Fiberglass Industry v Commission as the basis for their appeal.

81 Judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑300/16, EU:T:2019:235).

82 See judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑300/16, EU:T:2019:235, paragraphs 207, 210 and 211).

83 According to the appellants, that would have resulted in an overall countervailing duty rate of 4.6% instead of the 10.9% that the Commission had established.

84 See, in that respect, the judgment in Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission, paragraph 47, referring to the WTO Appellate Body report titled United States - Countervailing Measures Concerning Certain Products from the European Communities (WT/DS212/AB/R), paragraph 108), which found that the term ‘“a recipient” could include both a firm … and its owner. … A “group of persons” could include a group of “natural persons”, or a group of “natural and legal persons”, or a group exclusively of “legal persons”’.

85 The appellants’ references to their treatment in the parallel anti-dumping and anti-subsidy investigations are ill placed. Even if decision-making practice in the realm of trade defence could bind the Commission (quod non; see judgment of 24 February 2022, Eurofer v Commission, C‑226/20 P, EU:C:2022:122, paragraph 60 and the case-law cited), the Commission explains that only Jushi Egypt acted as the exporting producer of GFR to the European Union, such that there was no need to investigate the possibility of a pass-through of the benefit from Jushi Egypt to Hengshi Egypt. Along the same lines, see the judgment in Jushi Egypt for Fiberglass Industry v Commission, paragraph 55.

86 See, to that effect, judgments of 14 November 1984, Intermills v Commission (323/82, EU:C:1984:345, paragraphs 11 and 12), and of 10 January 2006, Cassa di Risparmio di Firenze and Others (C‑222/04, EU:C:2006:8, paragraphs 112 to 114), in the realm of State aid, and judgments of 12 July 1984, Hydrotherm Gerätebau (170/83, EU:C:1984:271, paragraph 11), and of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 48 and the case-law cited), in the realm of competition law.

87 See the judgment in Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission, paragraph 47.

88 See also, in that respect, the judgment in Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission, paragraph 56, and the reference to the WTO Appellate Body report titled United States - Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada (WT/DS257/AB/R), paragraph 146. See, similarly, in the realm of State aid, judgment of 10 January 2006, Cassa di Risparmio di Firenze and Others (C‑222/04, EU:C:2006:8, paragraph 114).

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